Fiduciary Duties and Brokers

FIDUCIARY DUTIES OF BROKERS-ADVISERS-FINANCIAL PLANNERS AND MONEY MANAGERS
Boston University School of Law Working Paper No. 09-36 (August 10, 2009) Tamar Frankel Revised August 25, 2009

This paper can be downloaded without charge at: http://www.bu.edu/law/faculty/scholarship/workingpapers/2009.html

Electronic copy available at: http://ssrn.com/abstract=1446750

© Tamar Frankel

Fiduciary Duties of Brokers-Advisers-Financial Planners And Money Managers Tamar Frankel
Abstract
Broker dealers and investment advisers form the lifeline of the financial markets. While in the past their functions were separate, and their regulation differed, throughout the years their functions were allowed to merge but their regulation remained separate. Advisers are their clients’ fiduciaries. Broker dealers (b/ds) are not, with some exceptions. It is recognized that the law has to change, and the question is how. In this Article I argue for imposing the fiduciary duty of loyalty and limiting conflict of interest of all financial intermediaries, including b/ds, and suggest a process for establishing the details of the law that should apply to them. Section One of the Article outlines the rationale for fiduciary law and its design. Section Two offers an overview of the past and current practice of b/ds and other financial intermediaries. Section Three proposes changes in the current law and a process to achieve future changes. Section Four proposes changes in the current law and a process to achieve future changes. The law should impose principles; the financial intermediaries should seek the specificity. B/ds were granted the freedom to change the way they did business. They sought the public’s trust and signaled their reliability and trustworthiness. Therefore, b/ds should live up to the images they have created and bear the legal burdens of the business changes they have chosen to adopt.

On December 11, 2008, a well known broker dealer confessed to having conducted a long-term Ponzi scheme. As Ponzi schemes must, his scheme too came to an end when the source of new investors dried up and current investors demanded payment. Bernard Madoff was an ex-chair of NASDAQ1 and owner of a broker dealership,2 who registered as an adviser in 2006.3 Madoff was one of 5,308 registered broker dealers4 and one of 11,340 registered investment advisers.5 The number of broker dealers has shrunk during 2009 as the number of advisers has risen. Thus, the population of the market intermediaries that feed and nourish the securities markets is both large and flexible.
Professor of Law, Michaels Faculty Research Scholar, Boston University Law School. My thanks to professors Birdthistle Eric Roiter, and Charles Whitehead for their great comments. To Stephanie Koe and Bill Hecker many thanks for their meticulous research. 1 Julie Creswell and Landon Thomas, Jr., The Talented Mr. Madoff, N.Y. TIMES, January 24, 2009, at BU1. 2 Sec. Investor Prot. Corp. v. Bernard Madoff Inv. Sec. LLC, 401 B.R. 629, 632 (Bankr. S.D.N.Y. 2009) (“The Complaint arises in connection with the well-publicized Ponzi scheme allegedly perpetrated by Bernard L. Madoff through his investment company, BMIS. BMIS is a broker-dealer and investment advisor founded by Bernard L. Madoff”). 3 Binyamin Appelbaum and David S. Hilzenrath, SEC Didn’t Act on Madoff Tips, WASH. POST, December 16, 2008, D01 (“The SEC said Madoff did not register with it as an investment adviser until September 2006.”). 4 Securities and Exchange Commission website, http://www.sec.gov/foia/foiadocs.htm (list of active brokerdealers). 5 Id. (list of registered investment advisers).
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Electronic copy available at: http://ssrn.com/abstract=1446750

The regulation of broker-dealers (b/d) on the one hand, and advisers (and financial planners), on the other hand, differs in one fundamental respect. Advisers are deemed fiduciaries, with limited exceptions. B/ds are regulated as contract parties, who are required to treat their customers fairly. B/ds are exempt from the definition of advisers under the Advisers Act of 1940, subject to certain conditions.6 But throughout the years the exemption broadened and the conditions were relaxed.7 B/ds are regulated by a self-regulatory organization (FINRA)8 under the supervision of the Securities and Exchange Commission (SEC), while most advisers are subject to the Investment Advisers Act of 19409 under the SEC regulation. To be sure, all actors are subject to antifraud provisions in the Securities Exchange Act of 193410 and other laws. It seems that b/ds do not object to being called fiduciaries, but seek relief from being fully regulated as such. They focus on the duty to perform their services well but not on the conflicts of their interests with those of their clients. They argue that b/ds are subject to many rules including the “suitability rule”11 that require them to sell to clients only suitable investments. Only in egregious cases do courts impose fiduciary duties on b/ds.12 Their regulation is therefore close enough to the regulation as fiduciaries. Nonetheless, b/ds’ excesses, the failure, or almost failure, of very large brokerage houses, and the changes in the political and financial environment have resulted in demands for imposing fiduciary law on b/ds. It is not surprising that most b/ds’ clients do not understand the different regulation of the services they receive.13 The b/ds themselves could be confused. The current regulation is duplicative, ambiguous, and costly. It opens the door to regulatory arbitrage, contributes to fraud, and weakens the effect of, and respect for, the law. It is time to rationalize the regulation of brokers, dealers, advisers, financial planners, and other financial intermediaries who influence and direct investors in the purchase, sale, lending and other activities concerning securities. In this Article I argue for imposing fiduciary duties on all financial intermediaries, including b/ds, and suggest principles and a process for establishing the
Applicability of the Investment Advisers Act to Financial Planners, Pension Consultants and other Persons Who Provide Investment Advisory Services as a Component of Other Financial Services, Investment Advisers Act Release No. 1092 (Oct. 8, 1987). 7 Currently, b/ds that offers free financial planning and are paid commissions on transactions following the plan, are regulated differently from advisers-b/ds who offer precisely the same services and are similarly compensated. 8 NASDAQ, Inc., Conduct Rule 2310, available at http://finra.complinet.com/finra/index.html (last visited Jun. 3, 2008); NYSE, Inc., Rule 405, available at http://rules.nyse.com/NYSE/NYSE_Rules/ (last visited Jun. 3, 2008). 9 Investment Advisers Act of 1940, 15 U.S.C. §80b- (2008) 10 Securities Exchange Act of 1934, 15 U.S.C. § 78§ Oa (20008). 11 See note 38. infra. 12 See note 28 infra. 13 ANGELA HUNG ET AL., RAND CORP., TECHNICAL REPORT, INVESTOR AND INDUSTRY PERSPECTIVES ON INVESTMENT ADVISERS AND BROKER-DEALERS 29 (pre-publication ed., 2008).
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details of the law that should apply to them. Section One of the Article outlines the rationale for fiduciary law and its design. Section Two offers an overview of the past and current practice of b/ds and other financial intermediaries. Section Three proposes changes in the current law and a process to achieve future changes. The Investment Advisers Act of 1940 should be amended to impose on all b/ds and financial intermediaries a fiduciary duty with respect to the services that they provide. For example, b/ds who offer no advice and no information and no sales talk are not subject to fiduciary duties with respect to advice or information or sales talk but they are fiduciaries with respect to the particular services that they offer, such as holding clients assets and executing the clients’ transactions. Legal changes should aim at creating “regulation by function” against the backdrop of fiduciary principles that apply to all b/d and advisers. Thus, regardless of the status of an actor (institution, employee) and regardless of what the actors are called or call themselves (planners, advisers, brokers, experts, analysts) one would focus on the service they offer, and impose the same rules on them. Advisers and b/ds should report to the SEC as well as to their clients the precise nature of the services they offer and the fees they charge, similar to the form used currently by advisers. They will then be fiduciaries with respect to the services they offer.

Section One. The Rationale for Fiduciary Law and Its Design and Structure
1. The Fiduciary Relationship

At the center of fiduciary relationships is entrustment of property or power that clients hand over to their fiduciaries in order to enable fiduciaries to perform a service to them. These clients are the entrustors.14 Fiduciary law reflects and deflects the risks that this entrustment poses for entrustors. * Fiduciaries provide socially important expert services to “entrustors” (and society) such as professional services (law, medicine, financial services). The distinction between these services and other socially important service is the high level of expertise and investment of time required to acquire this expertise.15 Therefore, it is in the interest of society to induce people to rely on experts rather than duplicate their efforts or avoid the services. While some situations of “information asymmetry” can be resolved by requiring disclosure of the information, in the case of most fiduciary services, the cost of understanding the information is too high and the education of the entrustors is wasteful to society. * In order to perform the services and before they can serve, most fiduciaries must be entrusted with property or power. For example, a b/d must be entrusted with
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See TAMAR FRANKEL, FIDUCIARY LAW ch. 1 (2008). In contrast, for example, in the United States, fixing a car or hairdressing, or secretarial services are just as important, but do not require as high a level of expertise and investment.

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the clients’ assets and the power to bind clients to legal obligations before the b/d can trade for the clients. An adviser who manages clients’ money is entrusted with discretion of deciding both the investment and the execution of the transactions, or the choice of those who will execute the transactions. Entrustment differs from an exchange by (1) its purpose--to enable the fiduciary to perform his services rather than to enjoy the entrusted property or power, and in most cases by (2) it is often a condition to the performance of the fiduciary’s service. * Controlling or monitoring fiduciaries in the performance of their services is either too costly or would undermine the very usefulness of the services. For example, most entrustors do not have as much knowledge about the securities markets as b/ds have, and cannot control the b/ds in the use of their entrusted assets. In various degrees fiduciary services must be left to the discretion of the fiduciaries, not only because of their expertise but also because the services require discretion depending on varying conditions. If clients controlled their trades and their assets, b/ds may not be able to perform timely trades, and the cost of consulting the clients at every step of the transaction would undermine the usefulness of the arrangement. They either register as b/ds or use minimal b/d services, and have little time to develop less expertise in another area. * Market controls of abuse of entrustment are not sufficiently effective to monitor fiduciaries. After all, entrustors empower fiduciaries or hand over their assets to them, willingly, sometimes even eagerly. Information concerning fiduciaries’ true performance or violations of their duties is not immediately publicly known. Usually markets react after violations have occurred. For example, the public cannot easily identify those analysts, who are paid to publish glowing recommendations for worthless securities. It is only after public investors suffer losses that the market made adjustments to these securities’ prices. But by that time the investors have already sustained losses. The analysts’ behavior may have also eroded public trust in analysts generally. * Entrustors’ risks. Entrustors bear the risks that their fiduciaries (1) might misappropriate or misuse the entrusted property or power and that (2) their fiduciaries will perform their services negligently; fail to perform the services in accordance with the entrustors’ directions; or fail to account for the entrusted property or the activities under entrusted power; or delegate the performance of the service to others.16 Thus, entrustors benefit from expert service but incur risks from the entrustment that these very services require. Investors benefit from trading in the securities markets, and bear the risks and benefits of such trading. But needing brokers in order to trade, investors take an additional risk derived from the very expert service (and the required entrustment) that they employ. Investors pay for the expert services but also risk losing the entrusted money or securities and receiving substandard services. Fiduciary law aims at reducing the risks from the very employment of these expert services. Entrustors are not the only ones who risk losses in fiduciary relationships. Fiduciaries, engaged in offering fiduciary services for gain. They need to convince
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See TAMAR FRANKEL, FIDUCIARY LAW 52 (2008).

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potential clients of the fiduciaries’ trustworthiness and expertise. If the costs of such convincing are higher than their benefits from the relationship, the fiduciaries are not likely to develop their business. Therefore, fiduciaries seek the law to assure entrustors of their trustworthiness. 2. The Design of Fiduciary Law and its Application to B/ds and Advisers

A number of features are typical of fiduciary law. a. The strictness of fiduciary law conflict-of-interest rules depends mainly on the level of the entrustors’ risks from the fiduciaries abuse of trust The focus of fiduciary law is on entrustment, regardless of the type of services and relationship in which entrustment is made.17 Agents’ liabilities are less strict than those of trustees for the main reasons that the entrusted powers to agents are not as broad as those to trustees, and because agency involves a greater degree of the principal’s control than the beneficiaries’ control over the trustee.18 While a secretary is not a fiduciary because the employer’s level of control over the performance of the secretary’s functions, such a secretary may be a fiduciary with respect to confidential information that he acquires in the course of his services. That is because he could not perform the services without being entrusted with the information. It never belonged to the secretary and he cannot use it for his benefit. b. Fiduciary duty of loyalty

Fiduciary law aims at reducing the fiduciaries’ temptations to misappropriate entrustment. Therefore, the most important fiduciary rules are preventive rules that prohibit fiduciaries from acting as fiduciaries in conflict of interests with the interests of the entrustors. If the main interest of b/ds is to sell securities (and sometimes particular securities for which the b/ds receive higher commissions) fiduciary law would prohibit them from giving entrustors the impression of offering expert advice, unless the conflicts of interest transactions are fully disclosed to the entrustors and receive their consent. Advisers, for example, must disclose to clients the fact that their fees are higher than usual market fees.19 These prohibitive and required rules apply even to actions do not necessarily injure the entrustors. The rules are designed to reduce the fiduciaries’
Tamar Frankel, Fiduciary Duties as Default Rules, 74 OR. L. REV. 1209, 1229 (1995). “Agency is the fiduciary relation which results from the joint manifestation of consent by one person that another shall act on his behalf and subject to his control, and of consent by that other so to act.”Nelson v. Serwold, 687 F.2d 278, 282 (9th Cir. 1982) (citing Grace Line, Inc. v. Todd Shipyards Corp., 500 F.2d 361 (9th Cir. 1974); RESTATEMENT (SECOND) OF AGENCY § 1(1) (1958)); see also RESTATEMENT (THIRD) OF AGENCY § 1.01 (2006) (“The agent acts for or on behalf of the principal . . . . ”); 687 F.2d at 282 (citing NLRB v. United Brotherhood of Carpenters, 531 F.2d 424 (9th Cir. 1976)). 19 See 17 C.F.R. § 275.204-3 (2008) (brochure rule under the Investment Advisers Act); Charles Meyer, SEC No-Action Letter (Sept. 4, 1975) (“[T]he Division has taken the position in cases where fees are more than 3% of net asset value that there would be a violation of the anti-fraud provisions of Section 206 unless it were disclosed that such fees are substantially above the industry average and that investors may obtain similar services at lower fees.”).
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temptation to act in conflict of interest.20 Thus, if brokers were fiduciaries they would have to disclose that they received payment from a third party to sell particular products. It would not be enough for the broker to describe the product (”educate the client”) or to determine that the products are “suitable” to the client. A fiduciary broker would have to disclose the payment of third parties to sell the particular securities. This disclosure will inform the client about the b/d’s conflicts of interests and thus calibrate the client’s trust in the b/d’s advice. c. Most fiduciary rules are default rules21

While fiduciary rules prohibit conflicts of interest, not all conflict of interest activities harm the entrustors. Therefore, fiduciaries may engage in such conflicts transactions, subject to the entrustors consent under certain conditions. This process transforms the clients-entrustors’ legal right to rely and trust their fiduciaries, into a contract relationship,22 in which the clients must protect their own interests against those of the fiduciaries, knowing that their fiduciaries’ interests conflict with their own. However, fiduciary rules cannot be avoided if the entrustors are incapable of independent and informed consent.23 The entrustors’ consent is subject to a number of conditions. The fiduciaries must disclose the details of the proposed transactions to the clients-entrustors. The information should enable the entrustors to protect themselves in the bargain and deal with their fiduciaries.24 Therefore, consent to future unspecified transactions is uninformed and should not be binding. Nor are the clients -- entrustors’ consents to highly unfavorable conflict of interest transactions always binding. The terms

See 17 C.F.R. § 275.206(4)-2 (2008) (requiring client funds to be maintained with qualified custodian). Note that trustees must earmark trust securities upon their deposit (to avoid the temptation to wait and find out whether the investments are successful first, and then determine whether to allocate the investments to the trust accounts or to the trustees’ accounts). RESTATEMENT (THIRD) OF TRUSTS § 84 (2007) (duty to segregate and identify trust property); id. cmt. d (duty to earmark); see also RESTATEMENT (SECOND) OF TRUSTS § 179 (1959) (duty to keep trust property separate); id. cmt. d (duty to earmark). 21 Frankel, supra note 12, at 1211-12. 22 See Frankel, supra note 12, at 1237, 1240-41. When fiduciary rules are properly understood as default rules, contract laws regarding capacity to consent will undoubtedly apply. If fiduciary duties are important enough to enforce regardless of whether they have been bargained for, and are sometimes non-waivable even by a fully competent entrustor, then they surely cannot be waived by an entrustor with incomplete control over her actions. 23 Leib v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 461 F. Supp. 951, 953 (E.D. Mich. 1978) (stating that one of broker’s duties associated with nondiscretionary account is “duty to refrain from self-dealing”), affirmed without opinion, 647 F.2d 165 (6th Cir. 1981); AUSTIN W. SCOTT & WILLIAM F. FRATCHER, THE LAW OF TRUSTS § 170.1, at 317-18 (4th ed. 1987) (the sale of a trust will be invalid if any of the following is true: 1) the beneficiary is not sui juris, 2) the trustee failed to make a full disclosure, 3) the trustee induced the sale by taking advantage of his relation to the beneficiaries, or 4) the sale is not fair and reasonable).. 24 See UNIF. TRUST CODE § 813(a), 7C U.L.A. 407, 609 (amended 2005) (“A trustee shall keep the qualified beneficiaries of the trust reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests.”); SCOTT & FRATCHER, supra note 19, §170.1, at 318-19 (“The trustee owes a duty of disclosure even though the relations between him and the beneficiary are such that the beneficiary is not likely to repose confidence in him.”).

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of the transactions may indicate possible fraud or misleading disclosure.25 Clients’ consents may be more doubtful and would require more evidence of entrustors’ independence when the fiduciaries are experts, and the non-expert entrustors are unlikely to form informed and rational decisions.26 c. Fiduciary duty of care

Because fiduciaries have far greater expertise than the entrustors, fiduciaries must use their skills in performing their services well and attentively. Fiduciaries may not purport to give advice without sufficient knowledge. If b/ds are advisers who offer an investment that “is like cash” they should not only understand what they are offering but also must explain to their clients not only the benefits but also the risks involved in the investment.27 In sum, sales representatives of b/ds should: know what they are selling; explain the investment to prospective buyers both in terms of the benefits and in terms of the risks. 3. The Reach of Fiduciary Law

Fiduciary law is designed to reduce entrustors’ risks from entrustment, including reliance on b/ds’ advice, financial planning and other services. The law interferes to entice investors to engage in fiduciary relationships, and help maintain the entrustorss’ trust in financial intermediaries and the viability of the financial system. Since fiduciary services involve conflicts of interests and are inherently risky for investors, law limits the extent of these conflicts depending on the (1) degree of the clients’ risks from the relationship, the (2) extent of the clients’ ability to prevent these risks by supervising the fiduciaries’ exercise of entrusted power. The higher the entrustors’ risks and the costs—the higher the legal intrusion will be. In addition, the law reduces competition among fiduciaries on actions that could undermine investors’ trust, by creating a “monopoly on trustworthiness.” Competition
See 26 SAMUEL WILLISTON & RICHARD A. LORD, A TREATISE ON THE LAW OF CONTRACTS § 69:4 (4th ed. 2000) (“Fraud may induce a person to assent to do something which he or she would not otherwise have done, or it may induce a person to believe that the act which he or she does is something other than it actually is.”); e.g. In re Boone, 83 F. 944, 957 (N.D. Cal. 1897) (it is “grossly improbable” that a client would fully understand a consent releasing his attorney from all of his fiduciary duties). In the corporate context, a court might ask: Why would shareholders consent to directors’ use of corporate information to enrich themselves without compensating the shareholders? 26 See Meheula v. Hausten, 29 Haw. 304, 312-14 (1926) (holding a deed invalid where an entrustor lacked business sophistication and knowledge of the English language, and her fiduciary failed to candidly inform her of the scope of the deed). Compare, e.g., McCracken v Edward D. Jones & Co., 445 N.W.2d 375 (Iowa Ct. App. 1989) (broker owed a fiduciary duty to the customer, significantly relying on the customer’s inexperience) with Williams v Edward D. Jones & Co., 556 So. 2d 914 (La. Ct. Ap.. 1990) (finding no breach of duty when the client was sophisticated). See generally ROY LEWICKI ET AL., NEGOTIATION 179 (3d ed. 1999) (“Within the context of negotiation, information is perhaps the most common source of power.”); CHARLES B. CRAVER, EFFECTIVE LEGAL NEGOTIATION AND SETTLEMENT 47 (1993) (it is a “simple fact that knowledge constitutes power in the bargaining context”). 27 Did Chuck, Do his Job, Editorial Comment, NY Times, Aug. 19, 2009.
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among fiduciaries can be beneficial to investors. However, if some fiduciaries gain shortterm, before their abuse of trust is discovered, honest fiduciaries are at a competitive disadvantage, and are tainted by the dishonesty of others. Law protects trustworthy fiduciaries from this type of competition. It should be noted, however, that while fiduciaries, including b/ds, may not use entrusted money or securities except for the clients’ benefit, b/ds may use as they please the commission they gain in exchange for their services. The commissions belong to them. The problem arises when fiduciaries have significant influence on the amount that they receive as compensation for their services. This situation occurs when cliententrustors are incapable of freely and independently agree to the commissions or the fees for the services. In such cases these payment of the commission are an exchange in form but not in substance. The greater the entrustment, the more numerous are the entrustors the less free bargaining power the entrustors may have. In such cases the law might interfere in containing the fiduciaries’ compensation. This is especially so when the entrustors will sustain costs in severing the relationship, for example, pay taxes on amounts that would otherwise be tax deferred.28

Section Two. Past Practices and Fee Structures of B/Ds and Advisers on Which the Current Law Is Based
In the 1930s, b/ds and advisory services were relatively distinct. When the Securities Exchange Act of 1934 (1934 Act) and the Investment Advisers Act of 1940 (1940 Act) were passed, the financial markets were barely active. The number of advisers was quite small. 29 Initially the Investment Advisers of 1940 Act was viewed essentially as a census mechanism,30 but throughout the years, advisers’ obligations as fiduciaries were tightened.31 B/ds’ regulation differed. Congress invited the establishment of selfregulatory organizations of b/ds to be supervised by the Securities and Exchange Commission (SEC).32 One organization emerged: the National Association of the Securities Dealers.33 1. Initially, the Difference Between B/ds and Advisers’ Was Fairly Clear

Advisers were viewed and regulated as fiduciaries. B/ds were viewed and regulated as securities salespersons, and the SEC imposed on them a duty of fairness in their contracts with their customers--the “shingle theory.”34 The SEC has held that once
For example, mutual fund investors are numerous and have no opportunity to negotiate the fees they charge. Redemption of mutual fund shares invested in a pension fund may involve for entrustors high taxes. 29 1 TAMAR FRANKEL AND ANN TAYLOR SCHWING, THE REGULATION OF MONEY MANAGERS (MUTUAL FUNDS AND ADVISERS)1-5 (2d ed. 2001) 30 Id. at 4-3. 31 Id.ch 4 32 15 U.S.C. § 78 § Oa (2006) 33 Similarly, rules of stock exchanges were recognized as binding, subject to the SEC supervision. 15 U.S.C. § S (2006). 34 8 LOUIS LOSS & JOEL SELIGMAN, SECURITIES REGULATION 3814 (3d ed. rev. 2004) (quoting Charles Hughes & Co., Inc., v. SEC, 139 F.2d 434 (2d Cir. 1943), cert. denied, 321 U.S. 786 (1944). 3d ed. rev.
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b/ds hang their shingles and invite clients, b/ds should follow a high ethical contract standard, and deal fairly with their clients. Therefore, b/ds were excluded from the definition of an investment adviser if they gave advice in connection with their brokerage business, and were not separately paid for advice.35 Presumably, under these conditions b/ds’ “advice” was understood to be sales talk. Based on the “fair contract image” the self-regulating organization passed specific rules including a rule that required b/ds who offer advice to determine the suitability of their advice to the advisee-client. The courts tightened brokers’ regulations in egregious cases by imposing on them fiduciary duties.36 Even under current law b/ds remain liable in certain circumstances, for example, when clients’ trading demonstrates that the clients are “committing economic suicide,”37 or when the clients direct the b/ds to trade in a highly irrational manner. Such actions may indicate that the clients did not have the capacity to give the directives, and their b/ds may have a duty to warn the clients to cease trading in this manner, or even to refuse to execute the orders.38 A broker may not execute an order that an unqualified person has made which is clearly against the client’s interests.39 “The relationship between broker and principal is fiduciary in nature and imposes on the broker the duty of acting in the highest good faith toward the principal. With respect to stockbrokers it is recognized, [t]he duties of the broker, being fiduciary in character, must be exercised

2004) (stating that under the “shingle theory,” “even a dealer at arm’s length implicitly represents when he or she hangs out a shingle that he or she will deal fairly with the public”). This is a contract theory, not a fiduciary theory. See id. (“[C]harging a price that does not bear [a reasonable relation to the market price] is a breach of the dealing of implied representation and works as a fraud on the customer.”). 35 Investment Advises Act of 1940 § 201(11)(C. §80b-2(a)(11) (C) (2006).
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See, e.g., Thomas Lee Hazen, Disparate Regulatory Schemes for Parallel Activities: Securities Regulation, Derivatives Regulation, Gambling, and Insurance, 24 ANN. REV. BANKING & FIN. L. 375, 41214 (2005); Barbara Black & Jill I. Gross, Making It Up as They Go Along: The Role of Law in Securities Arbitration, 23 CARDOZO L. REV. 991, 1041-42 (2002); Robert N. Rapp, Rethinking Risky Investments for that Little Old Lady: A Realistic Role for Modern Portfolio Theory in Assessing Suitability Obligations of Stockbrokers, 24 OHIO N.U.L. REV. 189, 212-13 (1998). See generally Barbara Black, Economic Suicide: The Collision of Ethics and Risk in Securities Law, 64 U. PITT. L. REV. 483 (2003). 38 Leib v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 461 F. Supp. 951, 953 (E.D. Mich. 1978), aff’d without opinion, 647 F. 2d 165 (6th Cir. 1981); Duffy v. Cavalier, 264 Cal. Rptr. 740, 750 (Cal. Ct. App. 1989). Contra Tatum v. Legg Mason Wood Walker, Inc., 83 F.3d 121, 123 (5th Cir. 1996) (Mississippi law imposes no duty upon broker-dealers of non-discretionary accounts to determine the prudence of requested trades); Wasnick v. Refco, Inc., 911 F.2d 345, 350 (9th Cir. 1990) (Washington law imposes no duty upon brokers to prevent from trading clients who are emotionally or financially unsuitable). Cf. DAN B. DOBBS, THE LAW OF TORTS § 332, at 899 (2000) (“The traditional common law rule . . . was that those who provided alcohol to minors and intoxicated persons had no responsibility . . . for injuries inflicted by those drinkers.”). Where such sales violated criminal statutes, courts refused to find “negligence per se” or “prima facie negligence” where the statutes were violated. Id. However, dram shop acts specifically provided for liability for alcohol providers, sometimes strict liability. Id. In about 1960, courts began reversing the common law rule, finding a duty of reasonable care for alcohol providers, regarding sale to a minor or intoxicated person. Id. at 900. Some courts have found liability to the drinker who injures himself; others have not. Some have held that the dram shop act provides an exclusive remedy and that it does not extend to the drinker. Some courts have found a duty of care to a minor drinker and not to an intoxicated adult. Id. at 901. 39 Betz v. Trainer Worthman & Co., 236 Fed. ASpp. 253; 2007 U.S. App. Lexis 11433 U.S. 9th Cir.(2007);

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with the utmost good faith and integrity.”40 The California Court of Appeals held that “the stockbroker has a fiduciary duty (1) to ascertain that the investor understands the investment risks in the light of his or her actual financial situation; (2) to inform the customer that no speculative investments are suitable if the customer persists in wanting to engage in such speculative transactions without the stockbroker's being persuaded that the customer is able to bear the financial risks involved; and (3) to refrain completely from soliciting the customer's purchase of any speculative securities which the stockbroker considers to be beyond the customer's risk threshold.”41 Arbitrators have also recognized fiduciary duties of a b/d that was expert in highrisk trading,42 if their clients have been self-destructing, or far less understanding than the b/ds.43 The b/ds’ expertise and their clients’ lack of judgment may impose on the b/ds fiduciary duties even when b/ds say nothing. Therefore, even under today’s law relief for b/ds offering non-discretionary execution of clients’ orders might not be automatic. 2. In the Past Sixty Years The Securities Markets Have Changed

The market changes were fundamental. Some of the changes required and received regulators approval. 44 Presently, b/ds execute clients’ securities transactions, as they did in the past. In addition, they sell to clients insurance products. They engage as brokers or as parties in various derivatives transactions. Their brokerage services include bailment45 and agency, for securities transactions,46 analysis of securities, as full service brokers used to do for wealthy customers, and arranging financing for their clients’ transactions.47 They help clients borrow and lend securities,48 and provide investors with
Twomey v. Mitchum, Jones & Templeton, Inc., 262 Cal. App. 2d 690, 709, 69 Cal. Rptr. 222 (Ct. App. 1968) (internal quotations and citations omitted); see Duffy v. Cavalier, 215 Cal. App. 3d 1517, 1533, 264 Cal. Rptr. 740 (Ct. App. 1989) (holding that "the relationship between a stockbroker and his or her customer is fiduciary in nature"). 41 Duffy v. Cavalier, 264 Cal. Rptr. 740, 750 (Ct. App. 1989). 42 THE GMS GROUP, LLC -v- NATHAN BENDERSON , 191 F. Supp. 2d 318; 2001 U.S. Dist. LEXIS 24031 (UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK 2001); Frederick Mark Gedicks, Suitability Claims and Purchases of Unrecommended Securities: An Agency Theory of Broker-Dealer Liability, 37 Ariz. St. L.J. 535 (2005) 43 There are arguments for keeping this protection for Brokers, even if they would be imposed with fiduciary duties. Arguably, with respect to advice these brokers are not fiduciaries. 44 See e.g., Blaine Aikin, Can Brokers be Fiduciaries? New DOL Guidelines provide that they may advise retirement plans. 45 See Energy Transport, Ltd. v. M.V. San Sebastian, No. 03 Civ. 4193 (PKL), 2003 WL 21415267, at *2 (S.D.N.Y. June 19, 2003) (“A bailee is a ‘person who receives personal property from another as a bailment.’. . . [A] bailment [is] ‘[a] delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a certain purpose under an express or implied-in-fact contract.’”). 46 Agency is “the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents to so act.” RESTATEMENT (THIRD) OF AGENCY § 1.01 (2006). 47 ANGELA HUNG ET AL., RAND CORP., TECHNICAL REPORT, INVESTOR AND INDUSTRY PERSPECTIVES ON INVESTMENT ADVISERS AND BROKER-DEALERS 29 (pre-publication ed., 2008). 48 See, e.g., Gene D’Avolio, The Market for Borrowing Stock, 66 J. FIN. ECON. 271 (2002); Darrell Duffie, Nicolae Garleanu & Lasse Heje Pedersen, Securities Lending, Shorting, and Pricing, 66 J. FIN. ECON. 307 (2002).

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funding to buy securities.49 In addition, like advisers, b/ds offer free advice on investments and personal financial planning.50 This trend was enhanced by the merger of large financial institutions that offer clients a broad array of experts’ services.51 Banks offer advisory, investment management, brokerage, investment banking, and other financial services. Investment bankers, such as Goldman Sacks, can be subject to bank regulation, which changes their public image. They provide brokerage customers with a sense of comfort, being, like banks presumably more safe and sound. On the dealer side, b/ds make markets in certain securities, sometimes make “dark markets” among anonymous large traders, deal in derivatives, securitize loans and auction notes (long-term notes auctioned short term to create short-term securities through sale). This list is not exhaustive and many future possibilities are likely to emerge. In sum, b/ds have expanded their traditional services into new areas and there is no reason to assume that the pressure to continue this trend will ease up. 3. B/ds’ Employees Exercise New and Different Functions

Who would have imagined that bank tellers will occupy the role of brokers? Yet, at least some bank tellers are being paid for developing relationships with depositors, some of whom may be elderly people, regularly cashing their monthly social security checks. The tellers have the advantage of knowing the amount of cash in the depositors’ bank accounts and continuous contacts with the depositors. The tellers might receive a fixed amount for every depositor they send to the b/d in the bank’s other part of the building. Tellers may also receive benefits if they sell CDs or other investments, which the bank b/d desires to sell. Arguably, their sales services are permissible so long as the depositors, who are not interested in these services, can refuse to discuss the proposed transactions. However, the tellers signal the depositors that the bank is not merely a bank but also a b/d and perhaps engaged in other financial services. In this case bank employees’ roles have changed to include not only serving depositors but also selling brokerage services as well as banks’ securities.
See 15 U.S.C. § 78g (2006). See HUNG ET AL., RAND CORP., supra note 3, at 53-54, 122, 159. See generally Certain Broker-Dealers Deemed Not to be Investment Advisers, Investment Company Act Release No. 50,980, Investment Advisers Act Release No.2340 (Jan. 6, 2005), 70 Fed. Reg. 2716, 2721 n.51 (Jan. 14, 2005) (adopted 2005) (codified at 17 C.F.R. § 275.202(a)(11)-1 (2008) (vacated 2007)). Patrick McGeehan, Merrill Lynch Catches the Spirit; A Traditional Brokerage Firm Spouts the On-Line Gospel, N.Y. TIMES, Oct. 8, 1999, at C1, LEXIS, News Library, Nyt File (“Merrill executives are resolute about the important role the firm can play in helping customers . . . manage their daily finances.”). 50 Kenneth Kehrer, Broker Integration: What Some Banks Are Doing, A.B.A. BANKING J., May 1, 2001, at 28, 28; Norman S. Poser, Options Account Fraud: Securities Churning in a New Context, 39 BUS. LAW. 571, 573 (1984). 51 Kenneth Kehrer, Broker Integration: What Some Banks Are Doing, A.B.A. BANKING J., May 1, 2001, at 28, 28; Norman S. Poser, Options Account Fraud: Securities Churning in a New Context, 39 BUS. LAW. 571, 573 (1984).
50 49

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The variety of b/ds’ fee-structures has also multiplied and expanded throughout the years. B/ds charge the traditional commission, based on the amount of the transaction or the number of the traded securities. The SEC allowed b/d to charge a percentage of the amount maintained in the client’s account, but that permissive rule was struck down by the court.52 Some b/ds draw on the advisory fees of mutual fund managers indirectly, paid by the advisers whose fund shares the b/ds sell. Thus, today, b/ds offer fiduciary services of various kinds together with nonfiduciary services. As experts in the financial markets they can perform these functions better than most of their clients. Some of the functions are exclusively within the b/ds’ domain, and no client can perform them (e.g., trading on a securities exchange). B/ds may offer some services free or at a discount, such as back-office services to money managers and ERISA Plan fiduciaries. B/ds may offer free or discounted retail sales of securities in order to attract mutual fund advisers and similar clients for other wholesale services (e.g., trading in large number of portfolio securities of mutual funds). B/ds functions cannot be distinguished from those of advisers and financial planners. Some advisers act as b/ds and some do not while most financial planners act as b/ds and few do not. Today, the names of brokers, dealers, advisers, financial planners and their different charges mean little when b/ds perform all or some of these functions and hold themselves out as trusted persons. In one situation a b/d’s representative’s clients were all served by one investment adviser. The adviser charged about 1% of the customers’ assets while the b/d representative received about 25% of the customers’ transactions commissions. The b/d representative changed his status. He registers as an adviser, and could then charge the same customers 1% of their assets. Under this arrangement the customers were charged 2% of the value of their assets and very little for trading their portfolio securities. Apart from two customers who questioned the added 1% charge, all other customers just accepted the change. They did not check and if they did, just assumed that this should be the charge. Has the recent financial crisis changed this trend? In some respect it seems that the recent crisis has sharpened the trend. Today’s volatile market might reflect the uncertainty of the investors and their advisers as well as waning trust in financial intermediaries. B/ds organizations consent, or even seek to be called fiduciaries. This attitude is remindful of the mutual fund advisers of the 1940s who consented to a regulatory regime though argued about the details. The issue will not be the name. It will be the extent of regulation as fiduciaries.

Part Three. What should the Legal Status of B/Ds and Advisers Be?
52

A alternative temporary rule passed. See 1 TAMAR FRANKEL & ANN SCHWING, THE REGULATION OF MONEY MANAGERS § 3.09[D][2], at 3-58.2 to .7 (2d ed. 2001 & Supp. 2009).

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1.

The b/ds’ Legal Status under Current Law is ambiguous

B/ds are not generally considered fiduciaries. That is even though b/ds pose very high risk to entrustors. In fact, b/ds are more similar to trustees than to agents. In fact they are both. Investors cannot verify what is being done with their money. Generally, the “evidence” of this fact is provided by the b/d, unless the custody of the investors’ money is in a bank and they receive confirmation not from the b/ds but from the custodian. Further, under the current law b/ds that do not have discretion in choosing transactions (non-discretionary accounts) are usually protected from liability for their voluntary information or advice with respect to such transactions. Under fiduciary law, however, a different result might occur. To be sure, the order of the investors will generally relieve the b/ds from liability with respect to that order, provided, however that the b/ds did not express any opinion, or give any information, regarding the clients’ choice and the clients are sophisticated and significantly wealthy.53 Yet, even under current law, b/ds are liable in certain circumstances, for example, when clients’ trading demonstrates that the clients are “committing economic suicide.”54 2. Advisers Are Fiduciaries under Current law

Clients must rely on advisers. B/ds’ and advisers’ powers can be abused.55 Regardless of how their fees are structured (fixed amounts, hourly rates, or percentage of the amount under consideration),56 advisers are fiduciaries.57 Advisory services do not necessarily include entrustment of property, but they include entrustment of power to act on behalf of clients or the power, like any other expert power, to affect the investment decisions of the clients. In that case, the clients entrust to the advisers the power to decide how to invest the clients’ assets, although they may reserve the power to overrule the advice. Thus, even when they make the ultimate decision, clients must rely on advisers.
53

KWIATKOWSKI v. BEAR, STEARNS & CO., 306 F.3d 1293; 2002 U.S. App. LEXIS 19274; Comm. Fut. L. Rep. (CCH) P29,167 (2d cir. 2002). 54 See, e.g., Thomas Lee Hazen, Disparate Regulatory Schemes for Parallel Activities: Securities Regulation, Derivatives Regulation, Gambling, and Insurance, 24 ANN. REV. BANKING & FIN. L. 375, 41214 (2005); Barbara Black & Jill I. Gross, Making It Up as They Go Along: The Role of Law in Securities Arbitration, 23 CARDOZO L. REV. 991, 1041-42 (2002); Robert N. Rapp, Rethinking Risky Investments for that Little Old Lady: A Realistic Role for Modern Portfolio Theory in Assessing Suitability Obligations of Stockbrokers, 24 OHIO N.U.L. REV. 189, 212-13 (1998). See generally Barbara Black, Economic Suicide: The Collision of Ethics and Risk in Securities Law, 64 U. PITT. L. REV. 483 (2003). 55 See TAMAR FRANKEL, INVESTMENT MANAGEMENT REGULATION 68-69 (3d ed. 2005) (citing CLIFFORD E. KIRSCH, INVESTMENT ADVISER REGULATION §§ 4-1 – 4-3 (1998)) (For example, when advisers refer clients to b/ds, who pay the advisers for referrals, advice is tainted with conflicts. Referrals of this sort may not be benefit clients). 56 KIRSCH, supra note 28, at §§ 20.9[1], 21.4[1][D]; HUNG ET AL., RAND CORP., supra note 3, at 74 (over 97% of investment firms receive compensation based on a percentage of assets under management, and the remainder receive fixed or hourly compensation).. 57 SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 191 (1963); Investment Company Act of 1940, 15 U.S.C. § 80a-35(b) (2000) (investment adviser of registered investment company has fiduciary duty with respect to compensation or payments by investment company to adviser or affiliate).

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Advice, whether paid directly or by brokerage, is a fiduciary service. Like physicians and lawyers, investment advisers should know what they recommend— whether by selling or directing others to trade. Persons who recommend as salespersons particular investments must understand what they are selling. That is because the clients do not. Regardless of how their fees are structured (fixed amounts, hourly rates, or percentage of the amount under consideration),58 advisers are fiduciaries.59 B/ds are close or similar to fiduciaries. 3. Combined different services may make good business sense for b/ds and other financial intermediaries as well as their clients, but may create conflicts of interest. Often it makes good economic sense for brokers to play multiple roles.60 For example, the brokers’ main function is to minimize search costs by connecting buyers and sellers of securities. But when no buyers or sellers are immediately available for clients, Brokers can serve their clients by becoming dealers--buying or selling the clients’ securities for the b/ds’ own account. 61 Similarly, it makes sense for b/ds, who are usually more expert in financial matters than their clients are, to advise clients on investment matters, as they seek to persuade investors to buy securities which the b/ds offer. In a fierce competitive atmosphere it is smart for b/ds to offer free advice and free financial planning to attract clients. Multiple roles can raise systemic, legal and practical issues. B/ds’ different services and names can confuse and mislead clients. For example, “financial planners” are b/ds that offer free financial planning advice. If the clients accept the free plans, the planners turn into b/ds and profit by executing the planned transactions that they advised the clients to accept. Clients that are drawn to, and relied on, the free plan might tend to forget that the planners’ profits are linked to the plans’ choice of investments. Clients may overlook the fact that free planning poses conflicting interest for the planner, who benefits from the choice of recommended investments. B/ds’ advice can be tainted with conflicts of interest. What seems like the best investment for the client may hide higher commissions or added compensation for the b/ds, resulting in hidden higher costs for the client. Had the client known about the b/d’s incentives to recommend certain investments, the client may have viewed the advice as
58

KIRSCH, supra note 28, at §§ 20.9[1], 21.4[1][D]; HUNG ET AL., RAND CORP., supra note 3, at 74 (over 97% of investment firms receive compensation based on a percentage of assets under management, and the remainder receive fixed or hourly compensation).. 59 SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 191 (1963); Investment Company Act of 1940, 15 U.S.C. § 80a-35(b) (2000) (investment adviser of registered investment company has fiduciary duty with respect to compensation or payments by investment company to adviser or affiliate). 60 When financial sector actors. Did Chuck Do his Job, Editorial Comment, NYTimes, Aug. 19. 2009. have the ability and freedom to adapt their offered services to changing market conditions, both the actors and the market are better off, because the same expertise can allow these actors to perform different functions, the gains of specialization can be realized, and the inefficiency of inactivity can be avoided. 61 See TAMAR FRANKEL, FIDUCIARY LAW 102-03 (2008).

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sales-talk, checked the investment alternatives and the costs more carefully, and trusted the b/d less. Clients may accept the fact that the b/ds’ commissions equal the clients’ costs, directly or indirectly. Clients might understand that they will pay for the free lunches they receive. However, the price of these free lunches may be hard to judge when the price is embedded in other services that carry different prices, different names, and different conditions. B/ds that offer information about mutual funds may be paid for listing particular mutual funds at the top of the lists. Among eight thousand mutual funds, the top twenty or thirty are the ones that the investors will examine. If clients do not know of the payments b/ds receive for putting particular mutual funds at the top of the list, the clients may choose these top listed funds on the assumption that they are the best in the b/ds’ opinion. In fact, even the funds below the top may be better performers and cost the investors less (including the amount paid to the b/ds). Even though these b/ds may execute non-discretionary transactions, their information is sales information; not information for the investors’ benefits. These b/ds are fiduciaries with respect to the information, and should disclose their conflict of interest in listing the funds. In addition, salespersons could be liable for fraud. For example, salespersons that represented to potential buyers that they were neutral financial advisers when they were not. The salespersons called themselves Certified Elder Advisers or Certified Senior Advisers when,
in fact, they were not objective advisers but annuities salespersons. A broker was held liable for fraud when he misrepresented to clients that he was an investment adviser, told clients that he worked for an hourly wage because he did not want commissions earned off of their investments to affect his advice but in fact was employed by a brokerage company and was paid commissions 63 on the sale of stocks. Thus, misrepresenting dual functions and conflicts of interest can amount to actionable fraud.
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Part Four: Proposed changes in the Law
1. All B/ds Should be Deemed Fiduciaries

Theoretically, fiduciary law should reflect the reasonable level of investors’ risk from abuse of trust, and the reasonable level of self-protection that entrustors can exercise. As listed above, b/ds offer fiduciary services of various kinds. Yet, they should always be deemed fiduciaries because they always hold the clients’ assets. However, their liabilities may depend on their functions and potential violations of fiduciary duties. a.
62 63

“Executing” b/ds

 Gilmour v. Boehmeller, No. 05-3588, 2007 U.S. Dist. LEXIS 64967 (E.D. Pa. Aug. 29, 2007)

Laird v. Integrated Res., 897 F.2d 826 (5th Cir. 1990). See also SEC v. Omnigene Devs., 105 F. Supp. 2d 1316 (S.D. Fla. 2000) (broker was liable because he did not fully disclose his conflict of interest, and the fact that he acted as a broker and not just an investment adviser). See also SEC v. Omnigene Devs., 105 F. Supp. 2d 1316 (S.D. Fla. 2000) (Radio show host told listeners he was a consultant whereas in fact he was a paid spokesmen and “pumped and dumped” the securities he was recommending).

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It has been argued that b/ds who do not exercise discretion with respect to the clients’ transactions (e.g., they execute “unsolicited clients’ orders”) should carry a lower level of risk. In practice, however, most investors trust their brokers, advisers, planners at about the same level. However, if the b/d say nothing, and if they offer no information and merely executing the clients’ orders, they should not be fiduciaries with respect to advice they have not given. But they bear fiduciary duties with respect to all other activities and services that they perform. As importantly, these b/ds may be responsible for any information that they impart, even as “objective information.” b. “Sales talk” should be subject to fiduciary duties

Investors trust their b/ds, regardless of what they call themselves or what they say. This result is not surprising. It makes good sense for someone who entrusts his money and assets to another to trust the other also in other aspects of the other’s services, especially if the other is the expert. Further, it might be that these services have been offered by the same persons or the same organizations. Advice for pay, free advice, and “sales talk” advice are hard to distinguish. In addition, many brokers, advisers, and planners are under the same holding-company’s roof. Besides, clients do not make legal distinctions nor weigh the risks they take from each type of service. They trust or do not trust. 2. B/ds’ Service as Investment Bankers Is Fiduciary Service

Investment bankers are advisers to institutions on various large transactions, such as mergers and acquisitions, private and public distribution of securities, and the creation of various markets in securities and other financial assets. In some cases the transactions are conducted among highly sophisticated institutions. In other cases the transactions spill over to individual investors or institutional investors. But in all these cases the investment bankers are the experts; and even sophisticated investors, whether institutions or individuals, depend on them. In most cases, the clients entrust their assets to the investment bankers, and in some cases they follow their advice. In principle, there is no difference between investment bankers’ services and those of b/ds, except that investment bankers usually serve more sophisticated investors. The result is not that investment bankers are not fiduciaries. The result is that as fiduciaries they can resort to the consent of their sophisticated entrustors more than b/ds might. The importance of the investment bankers to the financial system cannot be exaggerated. In this respect they are more important to the financial system than the retail b/ds. Therefore, I would include investment bankers in the group of fiduciaries. The time has come to amend the current law and establish a process to achieve future legal changes. The Investment Advisers Act of 1940 should be amended to impose on all b/ds (including investment bankers) a fiduciary duty with respect to all the services that they provide. B/ds who offer no advice and no information are not subject to fiduciary duties with respect to advice or information. However, they are fiduciaries with

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respect to the services they do offer. It is time to impose federal fiduciary law duties of loyalty and care on b/ds, advisers, financial planners and any other intermediaries involved in the market system, no matter whether they carry familiar or unfamiliar names.64 The servies that they offer should be subject to both duties of fiduciary law. 3. Legal Change Should Aim at Creating “Regulation by Function” Against the Backdrop of Fiduciary Principles Applicable to All B/ds and Advisers Advisers and b/ds should report the kind of services they offer to the Securities and Exchange Commission as well as to all clients. They should announce the precise nature of their services and their fees. “Functional regulation” should develop by adjusting the regulation to the b/ds or advisers or any other financial service providers that involve securities market intermediation, and seek different rules for the particular functions, provided always that the principles of fiduciary law remain applicable. 3. What Does Harmonizing Mean?

In light of the confusing state of the law and the different treatment of b/ds, advisers, and financial planners, proposals have used the word “harmonizing” as the objective for rationalizing the current law. However, the word harmonizing has been used to apply to fiduciaries’ duty of care rather than to the prohibition of fiduciaries’ conflict of interest.65 I believe that the emphasis on the duty of care diverts attention from the real problem posed by b/ds and their activities that might lead to fraud. The two duties are fundamentally different. The duty of loyalty aims at preventing the abuse of entrusted property or power. The duty of care is aimed to ensuring expert services and avoiding negligence in the performance of the services. Whether or not entrustors suffered harm from their fiduciaries’ violation of the duty of loyalty, fiduciaries may have to pay punitive damages. In the case of a duty of care fiduciaries might not, even though they did not pay close attention to their services. Mixing the b/ds duty of loyalty and duty of care will significantly water down the duty of loyalty. The focus would be on whether the b/ds attended to performing their tasks well. And the main problem, of conflict of interest, will be meshed together with evaluating the results of the service. It is easier to show conflict of interest than to show the degree to which a task was imperfectly performed. Hence, the focus of the future regulation should be on conflicts of interest-stealing, misappropriation, fraud, and less on how well the b/ds have performed their services. We should then call the proposal by its real name: It mixes up the nature of the regulation so that b/ds could call themselves fiduciary advisers yet engage in conflicts of interest transactions and behavior.

See e.g., Barbara Black, Transforming Rhetoric into Reality?: A federal Remedy for Negligent Brokerage Advice, 8 TRANSACTIONS 101 (2006). 65 Thomas P. Lemke & Steven W. Stone, The Madoff “Opportunity” Harmonizing of Care for Financial Profesionals Who Give Investment Advice, Wall Street Lawyer, 3 (2009).

64

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More plausibly, “harmonizing” could mean putting together as one the different registration and reporting forms that are now plaguing the financial intermediaries that are subject to more than one system of regulation. This solution is based on the assumption that the current law remains the same and that the cost of duplicate regulation will be reduced. 4. Amending the Law

Congress should amend the law to impose on b/ds all the duties imposed by the Advisers Act. B/ds should avoid conflicts of interest, as any fiduciary should. The changes in the law should: * Erase the Shingle theory for b/ds, whether they give advice, sales talk, or keep silent, and impose on all b/ds fiduciary duties prohibiting conflicts of interest and requiring performance under the duty of care. * Define advice broadly to include any information in connection with which b/ds are paid directly or indirectly, through other services, by clients or by third parties. Sales talk will be included in advice. * Correct redundancies in reporting and forms of registration to avoid unnecessary costs. 5. Reducing Confusion

There is a 2005 proposal for the SEC to prohibit broker dealers from “holding themselves out as ‘financial consultants’ or ‘financial advisers.’” 66 I am concerned that the time for requiring financial intermediaries to specialize is over, since specialization has been dismantled for many years. Putting the genie into the bottle may be quite hard, especially since the various functions are now often performed under the same institutional umbrella. Therefore, I suggest a related similar approach to reduce the current confusion. This approach would require b/ds and advisers to choose and announce their functions. Once they do that, they will automatically be subject to the current regulation of such designation. B/ds should hang a notice stating: “I am a broker and not your adviser” and state the applicable law or laws. Or b/ds should add to the notice: “I am also an adviser, subject to the Advisers Act of 1940 and fiduciary common law.” Or b/ds may add in their: “I am a financial planner subject to the regulation of broker dealers and the Adviser Act of 1940.” This notice will establish the legal basis for the b/d’s and advisers’ liability. Each intermediary in the securities market should have both a name and a clear designation of the current law that applies to the name. In other words “Regulation by function” of financial intermediaries should draw on the description of the function by the particular actors. The regulation will then focus
66

Barbara Black, Brokers and Advisers – What’s in a Name?, 11 FORDHAM J. CORP. & FIN. L. 31 (2005).

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on the (1) entrustment of property and power to the intermediaries, (2) their performance of the services with care, and (3) the ability of the clients to protect themselves against the misuse of entrustment and evaluate the quality of the services, without undermining the usefulness of the services. 6. Implementing the New Law

The new law should authorize the SEC to grant conditional exemptions for specific services. The model for such exemptions, both individual, by class, and by rule, has been available for seventy years of experience in the mutual fund area, under the Investment Company Act of 1940.67 These exemptions can be supported by no-action letters of the SEC staff. The one suggested difference from the current exemptive practice is to review exemptions and amend them for future applicants whenever the need arises.68 The most important aspect of the new law would be to allow and encourage the b/d profession to describe their functions in detail and thereby facilitate “functional regulation” in light of fiduciary law principles. At least two difficulties arise in the case of re-regulation. One is habit. It costs to change and adjust to a new regulatory regime. This cost is imposed both on the regulated and on the regulators. The second difficulty is that the general and uniform trust of the clients-entrustors does not mean that the functions of b/d-advisers-planners are identical. Therefore, it is unclear where new problems rise with respect to each function that the broker-advisers-planners perform. It is one thing to establish that all of these service providers are, and should be, trusted fiduciaries. It is another matter to ensure public trust if they perform different services. For example, advisers to mutual funds are subject to a far greater detailed structural and substantive regulation than advisers to other than mutual funds.69 Besides, market actors are innovators. A prototype of relationships today may not fit a new relationship which arises tomorrow. The better approach to both difficulties may be a piecemeal approach. It differs from the experience of the 1930s. In the 1930s Congress passed a number of statutes that covered the entire financial system. However, during that period the financial system was relatively inactive. Today, there is an extraordinarily large and active financial system
67 68

See e.g., § 6(c), Investment Company Act of 1940, 15 I.S.C. § 80a-6(c) (2006. The exemption under Rule 3a-7 of the Investment Company Act of 1940 for Special Purpose Vehicles (SPVs) did not prohibit the creation of sliced and diced SPVs. Had these SPVs been subject to section 12(d)(1) of the Investment Company Act, the design would have been far harder to achieve. 69 17 C.F.R. § 270.17j-1 (2008) (requiring adviser to mutual fund to adopt written code of ethics to prevent access persons from engaging in fraudulent conduct in connection with securities owned by fund) (pursuant to the Investment Company Act, 15 U.S.C. § 80a-1 to -65 (2006)). In addition, a registered adviser is required to adopt a code of ethics regarding the securities holdings and transactions of its access persons. 17 C.F.R. § 275.204A-1 (2008). A broker not required to register under the Advisers Act may avoid the costs of certain regulatory burdens including the code of ethics requirement regarding securities holdings and transactions. See Certain Broker-Dealers Deemed Not to Be Investment Advisers, Exchange Act Release No. 51,523, Investment Advisers Act Release No. 2376 (Apr. 12, 2005), 70 Fed. Reg. 20,424, 20,442-43 (Apr. 19, 2005) (codified at 17 C.F.R. § 275.202(a)(11)-1 (2008) (vacated 2007)).

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that is changing constantly. A statute that revamps the entire system may be obsolete by the time it is passed or may not pass at all. Therefore, rather than aim at establishing a general statute to cover brokers-advisers-planners, Congress could authorize the regulators, including the SEC to unify the disparate existing laws. The Commission should amend the law in a way that applies to today’s financial environment and appropriate for the market actors. If a party is not satisfied with the regulators’ actions, it may apply to Congress, but the rules complained of should remain intact until Congress acts. In light of some courts’ hostility to the regulators’ authority (presumably in deep respect for market solutions) the authority invested in the regulators should be very broad. At the same time, the process of the systemic changes should bind the regulators to require time, attention, and specificity (to avoid broad-brush changes). Then, after five years from the beginning of the process, the Commission’s rules of unification must be approved by Congress and any changes to the rules could be made then. The regulators should address particular issues reflected in the violations that have occurred by b/ds-advisers-planners under existing law. A particular violation by b/ds may then be governed prospectively by new rules or decisions that spell out in more detail the principles and standards on which the cases are grounded. In addition, the SEC may reduce the cost on those who offer the three services, for example, by unifying their registration statements, and eliminating other duplicative rules that are now plaguing the servicers that offer all services. These suggestions offer examples of what the Commission could do to alleviate the regulatory burdens on the three servicers, while raising the protections for entrustors. Most importantly, the suggestions emphasize the process of moving slowly and building a new system. This process may overcome the problem of changing habits and enlighten understanding of b/ds-advisers-planners and their clients. Piecemeal changes made with a clear purpose to reach their ultimate goal and principles may be most effective. In light of the recent severe threats to the financial system, the markets’ instability, and the current erosion of public’s trust, b/ds should comply with strict fiduciary duties. B/ds were granted the freedom to change the way they did business. They sought the public’s trust and signaled their reliability and trustworthiness. Therefore, b/ds should live up to the images they have created and bear the legal burdens of the business changes they have chosen to adopt.

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